[Sample] al-Shāfiʿī on a partner’s manumitting his share of a jointly-owned slave

754 – Al-Shāfiʿī, may God have mercy upon him, said: When the slave is [jointly-owned] between two men, and one of them manumits his portion of him; if he is solvent so that he can pay out half his value, then the slave is free—all of him—and the walā’-patronage belongs to the first manumitter, and there belongs no khiyār-option to the other master of the slave. But if he is insolvent, then the first half is free, the second half belongs to its owner, and there is no ransom-earning enjoined upon him. And this is written in the Book of Manumission, with its arguments; except we have found in this [present] book[1] additional material we had not heard of, with regard to [the preceding jurists’] arguments.[2]

755 – There was, of what they argue in this book, that their proponent said: How is “a single entity is partly free and partly owned” not just like “the wife is not partly divorced and partly not divorced?”

767 – It is said: Likewise, they are not linked wherever you have linked them.

767 –

قِيلَ: وَكَذَلِكَ لاَ يَجْتَمِعَانِ حَيْثُ جَمَعْتَ بَيْنَهُمَا.

768 – And it is also said to him: Does a wife belong to two [men], like a slave is owned by two? And does the wife’s husband have the right to gift her to a man—that she be his wife—just as a slave, when one gifts him, becomes the slave of the one to whom he was gifted?

770 – It is said: So why is it that the wife is correlated with the slave?

770 –

قِيلَ: فَمَا بَالُ الْمَرْأَةِ تُقَاسُ عَلَى الْمَمْلُوكِ؟

771 – And it is said to him: Have you considered [what would happen] when the slave is manumitted once; does his master have the right to re-enslave him—as he enjoys, when he once divorces his wife, the right of her return?

[3]Kitāba or mukātaba is a form of manumission contract by which, usually in regular installments, the slave (called a mukātab) purchases his freedom. In this case, it is asked if a man, whose wife seeks divorce, can contract a similar arrangement by which she gradually pays for a unilateral divorce (ṭalāq), which only he can pronounce (hence unilateral). For more on kitāba/mukātaba and related rulings, see MF, s.v. “مكاتبة” (vol. 38, pp. 360-3); and DJP, vol. 2, pp. 453-68.